Not upheld: Goods and services under S75 complaint against Clydesdale Financial Services Limited trading as Barclays Partner Finance

Decision detail

Summary

Mr R purchased Fractional Club timeshare membership in September 2013 for £21,275, financed by a £12,267 credit agreement with the Lender. The membership was asset-backed, providing a share in an Allocated Property's net sale proceeds. In October 2020, Mr R complained to the Lender alleging misrepresentation, breach of contract following the Supplier's liquidation, and improper commission payments. The ombudsman found the misrepresentation claim time-barred under the six-year limitation period in the Limitation Act 1980, rejected the breach of contract claim as Mr R retained his membership rights, and applied the Supreme Court's Hopcraft ruling to dismiss the commission complaint. The complaint was not upheld.

The Ombudsman's reasoning

The ombudsman applied the Limitation Act 1980, which provides a six-year limitation period for claims under Section 75 of the Consumer Credit Act. Since Mr R's claim was first presented to the Lender on 22 October 2020, more than six years after the Time of Sale on 9 September 2013, the claim was time-barred. The ombudsman rejected arguments that Section 32 of the Limitation Act (fraudulent concealment) applied, finding insufficient evidence of fraudulent misrepresentation or deliberate concealment. Regarding the breach of contract claim, the ombudsman found no evidence that Mr R had lost his membership rights or entitlement to share in property proceeds. On the commission issue, the ombudsman applied the Supreme Court's ruling in Hopcraft, Johnson and Wrench, concluding that the Supplier owed no fiduciary duty to Mr R and therefore claims regarding secret commission were not available.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website